Estephan v R [2015] NSWCCA 100 | Case summary

Estephan v R [2015] NSWCCA 100 | Case summary | Zoe

His Honour set out his conclusions on the issue of parity, as between the applicant and Kaminic, as follows: "51 Consistency in the punishment for offences against the criminal law is a reflection of the notion of equal justice and is a fundamental element in any rational and fair system of criminal justice. It finds expression in the parity principle which requires that like offenders should be treated in a like manner. As with the norm "equal justice" which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect degrees of culpability and/or different circumstances (see Green v R; Quinn v R [2011] HCA 49 (2011) 244 CLR 462 at [28] per French CJ, Crennan J and Kiefel J). 52 I do not accept the submission of senior counsel for the offender that a relevant distinction arises from Kaminic's knowledge of the deceased's murder. A reading of the judgment of Latham J in Kaminic makes it clear that no such distinction is to be drawn. Her Honour expressly stated that Kaminic's criminality was assessed on the basis of his actions which post dated the murder (at [96]). Her Honour's subsequent reference to Kaminic's knowledge of the murder (at [98]) was in the context of those activities (i.e., the activities post dating the murder), as well as in the context of her Honour's rejection of a submission that Kaminic had acted spontaneously. In my view, in light of her Honour's observations at [96] her subsequent reference (at [98]) to Kaminic's knowledge of the murder can only be construed as a reference to his knowledge after the murder had taken place, not before. It follows that there is no relevant distinction to be drawn in this respect between Kaminic and the offender. The offender also knew of the murder immediately after it had occurred, having been present at the time. 53 In the present case, it is evident from the judgment of Latham J that Kaminic was sentenced on the basis (inter alia) that his conduct in relation to passing on contract monies extended over several months beyond the date of the deceased's death. Moreover, the assistance rendered by Kaminic to Gattellari in attempting to convince Safetli to assume sole responsibility for the murder of the deceased took place over a period which extended up to 12 October 2010, some 12 months after the death of the deceased (at [72]). 54 Such conduct can be usefully contrasted with that of the present offender. The majority of the offender's conduct was concentrated over a short period on the day of the deceased's murder. True it is that he continued to conceal the fact of the murder for some 12 months afterwards. However, the same can be said of Kaminic. 55 Unlike the offender, Kaminic was not present at the time of the deceased's murder. I have already noted that there is authority for the proposition that such presence renders the offending more serious because a person who is present at the murder immediately realises the enormity of what has occurred. Equally however, and even though he was not present, the enormity of what had occurred must also have been visited upon Kaminic within a short period of time of it taking place. 56 It would appear that there was no evidence before Latham J as to what, if any, amount of money Kaminic was paid for his services. The agreed facts in respect of count 1 in the present case record (at [6]) that he was employed by Gattellari at the relevant time as a driver and general assistant. It might reasonably be expected that he would have been paid for those services but whether or not he was paid any further amount specifically referable to his offending is not known. What can be said however, is that Kaminic was an associate of both Gattellari and Safetli and it appears to have been by reason of this association that he became an accessory. The same cannot be said of this offender (see R v Farroukh (CCA (NSW), 29 March 1996, unreported). 57 In my view, having regard to all of these matters, the offender's role, and his criminality, are less than that of Kaminic. 58 However, it must also be recognised that in a number of respects Kaminic's subjective case was stronger than that of the offender. In particular, Latham J found (at [106]) that Kaminic had been diagnosed with a post traumatic stress disorder, a major depressive illness and an alcohol abuse disorder. These are not features of the offender's subjective case. It must also be recognised that Kaminic was given the benefit of a discount on account of his assistance to the authorities. That is not a consideration which arises in the offender's case. I have had regard to all of these matters in determining the appropriate sentence to be imposed on the offender." The Appeal

As the review of the proceedings on sentence shows, his Honour dealt with the topic of parity at some length in his judgment. He carefully considered the judgment of Latham J in Kaminic's matter. In such circumstances, the difficulty confronting the applicant in making out this ground of appeal was set out by Fullerton J (with whom Ward JA agreed) in Kaminic v R as follows: "58 To attract appellate intervention, the justifiable sense of grievance complained of when the sentence of one offender is compared relative to that of a co-offender is to be assessed objectively. Where there is no relevant distinction in the part each offender played in the commission of an offence (even if the roles might be differently described or involve different conduct) and no relevant difference in subjective features distinguishing one offender from the other, but markedly different sentences are imposed, that disparity will usually necessitate intervention with a view to promoting the principle of equal justice. Where, however, the differences in sentences are capable of being explained by the different roles of the offenders or relevant differences in their subjective circumstances and, as in this case, where the difference might reasonably be the product of the exercise of the sentencing discretion of different judges, the discrepancy between the sentences will not result in an unjustified disparity. 59 In Gill v R [2010] NSWCCA 236 at [58], McColl JA (with whom RS Hulme J and Latham J agreed) observed that an applicant faces a considerable obstacle in invoking the parity principle in circumstances where the sentencing judge whose sentence is said to give rise to a justifiable sense of grievance was aware of the sentence imposed on the co-offender complaining of disparity and the sentence is structured in that knowledge. In this case Bellew J sentenced Estephan conscious of the sentence imposed by Latham J. Both parties directed submissions to the question of parity. In addition, the applicant is confronted with Bellew J's finding that Estephan's criminality was less serious than that of the applicant."

Estephan v R

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